Plea bargains

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Yesterday I posted several articles and/or documents regarding ex-Anglican priest and former scout master Ralph Rowe.  I realize that Rowe is not Roman Catholic but  posted the articles for good reason.  It has to do with sexual predators and plea bargains.

This is of interest in that a plea bargain was struck for Father William Hodgson Marshall whereby he was assured that, following his guilty plea,  no further charges would be laid.  That means that any victim who approaches police with sex abuse allegations against Marshall is told immediately or shortly thereafter:  ‘sorry – we can’t proceed.’

My curiosity was piqued on the Rowe case after I read the initial coverage of the new charges against Rowe and reference to a plea bargain, a plea bargain which assured that Rowe would spend no further time in jail if he were to convicted of similar offences.  I hunted down a few more articles to try to get a handle on the nature of both the case and the plea , and then I looked for court documents.

This is quite convoluted with some conflict regarding dates and so on.  Here is what I have sorted out.  I hope it makes some sense:

(1)  Rowe was once an Anglican priest and a scout master;

(2)  Row, who currently lives in Surrey, BC, is facing five new counts of sexual assault and two of indecent assault.  The allegations northwestern Ontario between 1973 and 1986 in the First Nations communities of Fort Severn, Kitchenuhmaykoosib Inninuwug, Wunnumin Lake and Kingfisher Lake.

(3)  In 1994 Rowe pleaded guilty to 39 counts of indecent assault involving 19 boys and was sentenced to six years.

Under the terms of a plea bargain struck at that time, Rowe would serve no additional jail time if convicted of similar offences; which predated the offence

Later in ’94 Rowe pleaded guilty to further charges.  Because of the plea bargain, no time was added to his sentence;.  He was released on parole after serving 41/2 years of a six year sentence;

(4)  After his release from jail Row went to live in Surrey, BC where his brother , a retired Anglican priest, assisted at a local Anglican church, St. Michael’s;

Rowe maintained a low profile in the church until after his brother’s death in 2003.  After 2003 Rowe began to sing with the choir and say prayers at the front of the church.  The congregation did not know that he was a convicted child molester;

Authorities in the Anglican church locally knew of Rowe’s past. Parishioners were not told;

(5)  In 2006 Rowe faced a further 75 charges from 31 complainants.  The charges were whittled won to 57 from 25 complainants.  Only five of those charges went on to trial, those being offences which did not fit the plea agreement because they were ‘more serious’ than those of 1994.

A number of the allegations related to penile and/or digital penetration.  Although these offenses occurred when buggery was part of the criminal code, no charges of buggery were laid. (06 July 2007: R v Ralph Rowe 2007 (Reasons at trial))

Rowe was convicted.  On 07 July 2007 he was sentenced to 3 years in prison.  The plea bargain did not kick in on all charges.  According to the judge: “The sexual misconduct here is more egregious than fondling-like behaviour of a sexual nature.  It falls outside the plea agreement.” (06 July 2007: R v Ralph Rowe 2007 [Reasons at trial])

The gist of the plea bargain is cited in one court document:

07 July 2006: R v Rowe Reasons on Defence Motion 2006

(in a letter from defence counsel to the Crown dated April 14, 1994)

This will confirm that Mr. Rowe’s pleas are not predicated on a Crown position for sentence.  Mr. Rowe’s pleas, however, are predicated on the understanding that all outstanding complaints which occurred in the 1970’s and 1980’s against Mr. Rowe would be brought before the court before sentencing.  In this regard, if further allegations in the nature of fondling which occurred in the 1970’s and 1980’s are made after sentencing, that the Crown would not proceed.

(in a responding letter from the Crown to defence counsel dated April 15, 1994)

Thank you for your letter dated April 14, 1994.  As I indicated in yesterday’s telephone conversation, I have no authority to bind the Crown not to proceed on any future, similar allegations.  I do, however, make the representation that if substantially similar allegations against your client arise in the future in Kenora District that those matters will be dealt with by way of concurrent sentences.

Defence asked for a conditional sentence.  The judge declined:

08 May 2007:  R v Rowe Reasons for Sentence (May 2007)

Mr. Sinding has asked that the Court consider a conditional sentence of 2 years.  In my view such a disposition is not proportional when the gravity of the offence and the degree of responsibility is considered.  Nor is a conditional sentence, in my view, consistent with the case law that suggests clearly in cases like the present that the principle of general deterrence and the denunciation by the community towards the conduct find expression in the sentence that is accorded.  …..

Much of the focus of the trial has focussed on what counsel and the Court have regularly referred to as “more egregious conduct”.  It would be regrettable, in my view and wrong in principle, if because of our focus at trial on  the determination whether there was more egregious conduct, if this left the impression that the offending behaviour of Mr. Rowe that was at play in respect of the offences to which he plead guilty during the course of this hearing, were somehow on the lower spectrum of sexual abuse.

Sexual abuse is act of violence and when committed against children is violence, both physical and profoundly psychological in its impact.  And we have witnessed in the Victim Impact Statements just how profoundly damaging sexually abusive conduct can be on the psyche of a child, enduring to the point that it continues to haunt, even during adulthood.

I elect not to exercise the discretion that Justice Fraser exercised in 1994 in invoking the section of the Criminal Code that required that Mr. Rowe serve a minimum number of years before becoming eligible for parole.  There are those who are more adept at risk assessment and have greater information before them than the Court presently has and I will leave it to them.  To the extent I can comment on Mr. Rowe’s risk of re-offending, I share the view of the Crown that the risk will be ever-present.  He has shown signs that it may be manageable but I am persuaded that even upon his release there needs to be conditions intended to secure the safety of the public.

(6)  According to a media report from 2007, when word was out at St. Michael’s in Surrey that Rowe was a serial molester who had been charged again, some members of the congregation said  they had seen  Rowe more than once in the company of a young Caucasian male who seemed to be in his early to mid-teens and did not appear to be a parishioner;

(7) There was a raft of new charges in 2009 – those were whittled down  six of indecent assault and one of sexual assault.  The victims were between the ages of 5 and 15.

Rowe attempted to get a stay based on abuse of process and the plea bargain.  A stay was denied.

03 February 2009: R v Rowe February 2009 Reasons on Motion for Stay on grounds of abuse of process (re plea agreement) (Motion denied)

 Mr. Rowe says that the offences to which he entered pleas of “guilty” in earlier prosecutions (1994 and 2007) are symbolic of every offence he committed in the remote northern communities during the 1970’s and 1980’s, whether they were actually prosecuted or not.

In my opinion, these defence submissions ignore entirely the previous plea agreement that, with the benefit of counsel, Mr. Rowe entered into with the crown in 1994.  The plea agreement related to sentencing only.  It did not proscribe future prosecution.  By that agreement, Mr. Rowe remained subject to future prosecution and additional jail time in respect of after–discovered offences involving more egregious conduct.  Similarly, Mr. Rowe, by his plea agreement, faced additional prosecution even for after–discovered offences that were similar in gravity to those already known in 1994.  The most he could hope for was no additional jail time for offences similar in gravity to those for which he was convicted in 1994.

I note that the Supreme Court of Canada has held that a series of trials will not, in and of itself, constitute an abuse of process.[14]  In my opinion multiple prosecutions, based in each instance on new allegations from newly emerging complainants is neither contrary to law nor offensive unless the totality of circumstances demonstrably raises further prosecution to the level of an abuse of process;

Although the stay was denied and Rowe was convicted, he did not suffer.    The judge decided Rowe should not serve any more time in prison because the “serial prosecution” of the 69-year-old former priest amounted to a harsh punishment.

Rowe was sentenced to one year to run concurrent to the sentence he was already serving.  Rowe was convicted 02 July. (02 July 2009: R v Rowe 2009 [Reasons at trial])

Rowe was released from jail the following day;

(8)  Rowe was released on parole on 2009, one day after he was found guilty on seven new charges.

The Kenora, Ont. Superior Court judge who found him guilty decided Rowe should not serve any more time in prison because the “serial prosecution” of the elderly former priest amounted to a harsh punishment;

(9)  In November of last year 24 First Nations men went to Ontario Provincial Police  alleging sex abuse at the hands of Rowe.

Where the plea bargain fits in here remains to be seen.  There is no way of telling by the charges if these offences might be considered ‘more serious’ than those of 1994.

On 22 April 2012 Rowe was charged with five new counts of sexual assault and two if indecent assault.

This is the impact of a plea bargain which merely assures no further imprisonment for crimes of a similar nature committed before the date of the agreement.  But, note the Crown’s comment:  “I have no authority to bind the Crown not to proceed on any future, similar allegations.”

Have things changed since 1994?  How did Father Hod Marshall manage the sweetheart deal he has?

There is lots of reading there for those who wish to delve deeper into this.  My husband often tells me that we in Canada have a legal system, not a justice system.  When I read of shenanigans such as this I am inclined to agree.

Enough for now,

Sylvia

 

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